11 F. 768 -

11 F1d 768

Case Text

768

FEDERAL REPORTER.

was the bill of a company and not of the defendants. Where the bill of ex change declared on is manifestly the draft of a company, and not of the Indibe held to bind the agents viduals by whose hands it is subscribed, it personally, and an allegation that defendants made" their" bill of exchange is inconsistent with the terms of the writing sued on audmade part of the record. . The cases cited in the opinion were: Sayre v. Nichols, 7 Cal. 535; Carpenter v. Farnsworth, 106 Mass. 561; Dillon v. Barnard, 21 WalL 430; Binz v. Tyler, 79 Ill. 248.

Patents for Inventions-Prior Knowledge and Use. VINTON 'D. HAMILTON, 21 O.G. 557. Appeal from the circuit court of the United States for the northern district of Ohio. The decision of the su_ preme court was rendered January 8, 1882. Mr. Justice Woods delivered the opinion of the court, to the effect that the patent granted for an improvement in the manufacture of iron for furnace slag was invalid, in view of facts developed hy the testimony as to knowledge and use of the invention therein claimed by others prior to the invention or discovery of the patentee, and that in a process of reducing slag the application for the first time to a cupola furnace to accomplish the same end is devoid of invention. When applied to a cupola furnace the cinder-notch performe:l the same function in the same way. A. C. McCallum, for appellants. T. W. Sanderson, for appellees. Case cited: Pearce v. Mulford, 102 U. S. 112;
Assignment-Contest-Matter in Dispute. CHATFIELD 'D. BOYLE, 4 Morr. Trans. 81. Appealfl.'om the circuit court of the United States for the western district of Tennessee, decided in the supreme court on March 8, 1882, Mr. Chief Justice ll':aitedelivering the opinion of the court to the effect, that where certain creditors of a mercantile firm, secured by assignment, bring a suit on behalf of all creditors secured thereby to set aside a prior assignment, and on an adverse decision appeal, the matter in dispute is not the whole amount of the fund in court, but simply their proportionate share of the fund that would be realized in the event of their success, and no part of the fund that would go to creditors, not before the court, can be taken into account. The cases cited in the opinion were: Terry v. Hatch, 93 U. S. 44; Seaver v. Bigelows, 5 Wall. 208; Rich v. Lambert, 12 How. 347; Oliver v. Alexander, 6 Pet. 143; Stratton v. Jarvis, 8 Pet. 4; Paving CO. Y. Mulford, 100 U. 8.148.

Although a federal court of equity, in Tennessee, may not have the same jurisdiction the state courts hav'e to entertain a bill by a party out of possession to remove Clouds from the plaintiff's title, it has undoubted jurisdiction to enforce the trusts of a will at suit of a cestui que trust who has been deprived of possession by a breach of the trust, and a bill framed under the state practice may be amended in its prayer to conform to that jurisdiction, and will not be dismissed for that defect.
2.

SAME-PLEADING-IMPERFEOT ExH.ffiIT....,.:EFFECT ON DEMU;RRER.

The broad allegation of a bill that a trustee has been by decree of court substituted for the original trustee, who resigned, cannot be qualified on demurrer by reference to the decree itself, detached from the record of the proceeding, and found with the bill in this case, not even if it can be treated as an exhibit to the bill, where the bill promises to produce the record in evidence at the hearing. 3.
WILL-CoNSTRUOTlON-Eq,UITA:BLE AND LEGAL ESTATES-" USE" AND" BENEFIT."

Where a testator devised property to his sons as trustees for his daughter, employing the words" and for her benefit aud for her use," and directing that '" after her death the whole legacy to be divided among her children, if any," and if she died without issue to the testator's other daughters, with power in the trustees, " if they think proper," to sell the property" for her benefit," and" to assist her," with similar devises to trustees for other daughters, "for their support and benefit," and" for her special use and benefit," hdd, that the daughter took an equitable life estate in the property, with remainders over, according to the directions of the will, and that the confusing employment of the words" use," .. benefit," and the like, and the grant of the powers vested in the trustees, did not reduce her interest to a mere usufruct in their discretion.'- SAME-HUSBAND AND WIFE-HUSBAND'S INTEREST-TENNESSEE CODE,

.f 2481.

Where a wife has, under the trusts of a will, an equitable life estate in land, her husband has, at common law, a right to the rents and profits; but he being dead when the bill was filed, it becomes unnecessary to determine the predse effect of the statute of 1850 (Tennessee Code, § 2481) on his interest, where the marriage took place prior to the statute, as it does not affect the question of her right to file the bill to recover possession, in its relation to the statute of limitations, but only the extent of the relief to'whichahe may be entitled, on the final hearing, in taking any account of the rents and profits that may be ordered.
5. TnUfi'I'EES-RESIGNATION-DISORETIONARY POWERS-SUBSTITUTED TRUSTEE.

'Where a WIll gave the trustees named power to sell the property devised to them in trust, " if they think proper, and it should so happen that some of the property ought to be sold for the benefit of the daughter, so as to buy 11er some negroes or other property to assist her," held, that the power was personal and discretionary in the trustees named, and, on their resignation and the substitution of a new trustee, did not pass to him.